Whittacker v Police - [2005] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITTACKER v POLICE
Judgment of The Honourable Justice Anderson
24 February 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE OF BLOOD ALCOHOL - DISCRETION TO ADMIT OR EXCLUDE
Appeal from a decision of a Magistrate to admit a breath analysis certificate – the appellant was convicted of driving with a prescribed concentration of alcohol – the alleged inadmissibility of the certificate was the whole of the appellant’s case – the breath analysis test was administered when the appellant was seated in his car which was parked in his carport – the police officers who administered the test had followed the appellant who had been driving along Port Road at Wallaroo – the power to breath test the appellant was pursuant to s47E(2a)(b) of the Road Traffic Act 1961 (SA) – the test took place within a ‘prescribed period’ – appellant asserted that the police did not have the power to require the appellant to submit to an alcotest because it was a condition precedent to the exercise of that power that the vehicle driven by the person to be tested first be ‘stopped’ by the police – appellant asserted that this condition was not satisfied as the appellant had stopped the car of his own volition – also argued that a notice published by the Commissioner of Police informing the public of the prescribed period made it clear that a car must be being driven on a road in order for the police to have the power to stop it – held: stopping of vehicle by police not a condition precedent to exercise of the power under s47E, no error on the part of the Magistrate demonstrated – appeal dismissed.
Road Traffic Act 1961 s47E, referred to.
Police v Mincham (1996) 67 SASR 254, discussed.

WHITTACKER v POLICE
[2005] SASC 61
Magistrates Appeal

Anderson J This is an appeal from a Magistrate who admitted a breath analysis certificate against the objection of the appellant. The admission of the certificate resulted in a conviction because the whole case mounted by the appellant before the Magistrate related to the inadmissibility of the certificate.
The learned Magistrate set out the agreed facts as follows:
“1.The relevant date is Sunday, 5 October 2003.
2.The relevant time is 3.15 to 3.30 a.m. on that morning.
3.That was a prescribed period, namely, school holidays for the purposes of s.47E of the Road Traffic Act.
4.Whittacker had been driving a motor vehicle on a public road, namely, Port Road at Wallaroo.
5.He was travelling east.
6.Police were following behind Mr Whittacker. How far behind is not a matter that is agreed.
7.Mr Whittacker lives at 34 Port Road with his parents.
8.He pulled into his driveway of 34 Port Road.
9.He switched his motor off under the carport.
10.The police pulled into the driveway of 34 Port Road and walked up to talk to him.
11.The period of time between which he turned off his motor and the police turned up is not agreed, but it is a short time.
12.There were two police officers, Wilkins and Lamprie.
13.They asked him to undergo an alcotest and he complied.
14.The defendant was told it was a mobile random breath test pursuant to 47E of the Road Traffic Act which he has complied with.
15.Whilst on the road, the police did not observe any breaches of the Road Traffic Act, specifically part 3, what they call scheduled offences.
16.The police did not communicate whilst on the road to Mr Whittacker any intention to pull him over.
17.Police did not stop defendant’s motor vehicle on a road.”
The question which arises in this matter involves the powers under s47E(2a)(b) and (2ab) of the Road Traffic Act 1961 (SA). Mr Germein, who appeared for the appellant, argued that it was a condition precedent to the exercise of the powers that the vehicle must be stopped by the police. He argues that this vehicle was not stopped by the police because the appellant drove into his own driveway and stopped the vehicle himself. It was after this that he submitted to the alcotest.
The relevant parts of s47E are as follows:
“47E. (1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion –
(a) has committed an offence of a prescribed class of which the driving of a vehicle is an element; or
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(c) has behaved in a manner that indicates that his or her ability to drive that motor vehicle is impaired; or
(d) has been involved in an accident,
that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.
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(2) Performance of an alcotest or breath analysis required under subsection (1) must be commenced within two hours of the event giving rise to the belief referred to in that subsection.
(2a) A member of the police force may require –
(a) the driver of a motor vehicle that approaches a breath testing station established under section 47DA; or
(b) the driver of a motor vehicle during a prescribed period,
to submit to an alcotest.
(2ab) A member of the police force may direct the driver of a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that the driver submit to an alcotest or a breath analysis.
(2ac) A person must forthwith comply with a direction under subsection (2ab)…
(2f) A member of the police force may not, while driving or riding in or on a vehicle not marked as a police vehicle, direct the driver of a motor vehicle for the purpose of making a requirement under this section that the driver submit to an alcotest or a breath analysis.”
Mr Stevens, for the respondent, provided a helpful historical review of the random breath testing legislation to illustrate the development of the various sections since the concept was first introduced in 1981. I summarise some of the relevant amendments.
Random breath testing was introduced by Act No 46 of 1981, which inserted s37DA into the Road Traffic Act 1961 and amended s47E. This scheme was revised by Act No 55 of 1985 which amended both of the above sections. Act No 17 of 2001 further amended s47E(2), inserting subs (2c) – (2e), and imposing a time limit in which a random breath analysis must be commenced. Counsel for the respondent argued that these amendments do not demonstrate any intention to restrict the broad power contained in subs (2a) so that it would only apply where a vehicle had been stopped by the police.
Random testing during ‘prescribed periods’ was introduced by Act No 8 of 2003. This Act amended subsection 2(a) and inserted subsection 2(ab), 2(ac) and 2(f). Again, the respondent argued that there was nothing in these amendments which evidences a legislative intention to restrict the powers conferred by subs (2a).
The Full Court decision of Police v Mincham (1996) 67 SASR 254 involved a random breath-testing station. When the driver was approaching that station, he pulled over and changed places in the vehicle with his passenger. When the passenger drove the vehicle into the breath testing station, both the passenger and the original driver were tested with the original driver returning a positive result. There was an argument in that case as to whether the vehicle was approaching the breath-testing station within the meaning of s47E(2a)(a). It was held that the subsection applied with equal force where the driver stopped short of the breath testing station.
This appeal deals with s47E(2a)(b), but the same reasoning should apply. The fact is that the appellant had been driving his motor vehicle on a road during a prescribed period, namely, the school holidays, and therefore the police were entitled to require him to submit to the alcotest pursuant to s47E (2a)(b), and, in my view, the learned Magistrate correctly noted at [5]:
“On all the agreed facts this man is the driver of a motor vehicle during the prescribed period. The fact that he has moved onto private property and stopped his motor vehicle does not seem to me on that reading of the legislation to preclude the police from requesting him to submit and he has submitted to an alcotest and subsequently to a breath analysis test.”
I agree with the learned Magistrate in his analysis.
The respondent used the appellant’s argument to illustrate by analogy that the clear intention of the legislation could be defeated if the interpretation suggested by the appellant was correct. The example given was of a driver approaching a breath testing station, and then when short of that station, stopping the vehicle. Could it be argued that he or she could not be tested? The driving took place during a prescribed period, but the vehicle was stopped by the driver before the police attempted to stop it and therefore the driver could not be tested on that argument. I agree with the submission of the respondent that such a result would not be in accordance with the clear intention of the legislation, and therefore cannot be right.
It was also argued that s47E(2f) was relevant in that it was said that it prevented the police from stopping a driver unless they were driving a marked police vehicle. It was argued from this that therefore the police officers were not entitled whilst on foot to approach the driver in his driveway where he had stopped the car. In my view, there is nothing in the section which requires the police to be mobile as suggested by the appellant.
I agree with the overall submission of the respondent that none of the amendments set out earlier show any legislative intention to restrict the very broad powers given to the police in s47E(2a).
There was a further argument relating to an advice contained in a notice which was published by the Commissioner of Police, as required by s47E(8), relating to the prescribed period. It provides information for members of the public. The notice, which requires “advice about the powers members of the police force have under this section in relation to a prescribed period”, contained the words:
“Under this legislation, police have the power to stop any motor vehicle being driven on a road during a ‘prescribed period’ and direct the driver to submit to an alcotest.”
It was argued that this amounted to an interpretation of the powers of the police by the Police Commissioner and clearly indicated that the vehicle had to be driven on a road when stopped.
For the reasons already given, there is no requirement in the legislation, in my view, for the vehicle to be stopped whilst being driven on a road, as long as it had earlier been driven on a road. Admittedly, the notice from the Police Commissioner could be better expressed, and I suggest it might be helpful if it were reworded to remove any possible ambiguity.
In my view, for the reasons given, the appeal should be dismissed.